Citation Nr: 0112308
Decision Date: 04/30/01 Archive Date: 05/03/01
DOCKET NO. 00-16 421 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
ATTORNEY FOR THE BOARD
Michelle L. Nelsen, Counsel
INTRODUCTION
The veteran had service with the new Philippine Scouts from
April 1946 to March 1949. He died in July 1999. The
appellant is the veteran's surviving spouse.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a February 2000 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Manila, the Republic of the Philippines.
REMAND
There has been a significant change in the law during the
pendency of this appeal. On November 9, 2000, the President
signed into law the Veterans Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law
redefines VA's obligations with respect to the duty to assist
and includes an enhanced duty to notify a claimant as to the
information and evidence necessary to substantiate a claim
for VA benefits. This law also eliminates the concept of a
well-grounded claim and supersedes the decision of the United
States Court of Appeals for Veterans Claims in Morton v.
West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v.
Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam
order), which had held that VA cannot assist in the
development of a claim that is not well grounded. This
change in the law is applicable to all claims filed on or
after the date of enactment of the VCAA, or filed before the
date of enactment and not yet final as of that date.
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
§ 7, subpart (a), 114 Stat. 2096, 2099-2100 (2000). See also
Karnas v. Derwinski, 1 Vet. App. 308 (1991).
With respect to the duty to assist, under the new law, VA is
required to make reasonable efforts to obtain relevant
records (including private records) that the claimant
adequately identifies and authorizes VA to obtain. Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3(a),
114 Stat. 2096, 2097-98 (2000) (to be codified at 38 U.S.C. §
5103A(b)). Specifically, in disability compensation claims,
the VCAA states that the duty to assist requires VA to obtain
the veteran's service medical records or other relevant
service records held or maintained by a government entity.
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
§ 3(a), 114 Stat. 2096, 2097-2098 (2000) (to be codified at
38 U.S.C. § 5103A(c)).
The Board finds that a remand is required in this case for
compliance with the duty to assist provisions contained in
the new law. In addition, because the RO has not yet
considered whether any additional notification or development
action is required under the VCAA, it would be potentially
prejudicial to the appellant if the Board were to proceed to
issue a decision at this time. See Bernard v. Brown, 4 Vet.
App. 384 (1993); VAOPGCPREC No. 16-92. In an effort to
assist the RO, the Board has reviewed the claims file and
identified certain assistance that must be rendered to comply
with the VCAA. However, it is the RO's responsibility to
ensure that all appropriate development is undertaken.
First, the Board notes that the RO denied the appellant's
claim as not well grounded. As discussed above, the VCAA
eliminated the well-grounded claim requirement. On remand,
the RO must implement this change.
Second, the Board notes that the veteran's death certificate
lists the place of death as Calamba Medical Center and
provides an address. It appears that the veteran was
hospitalized there for about the one-week period prior to his
death. The hospitalization records may provide information
vital to the appellant's claim. Given that the name and
location of the hospital is otherwise identified, the Board
believes that the appellant should be afforded the
opportunity to authorize VA to obtain those records.
Finally, the Board observes that, in connection with the
veteran's prior service connection claim, the RO attempted to
secure his service medical records. The August 1996 response
from the National Personnel Records Center (NPRC) indicated
that the records might have been destroyed in that facility's
fire. It requested that the RO submit a completed NA Form
13055, Request for Information Needed to Reconstruct Medical
Data. Review of the claims folder reveals that the veteran
did not provide the relevant information sought on the form
and that therefore the RO did not submit it to NPRC. In her
July 2000 substantive appeal, the appellant suggested that
she had knowledge of medical treatment the veteran received
in service. On remand, the RO should afford the appellant
the opportunity to provide additional information about such
treatment to facilitate a search for evidence of the
veteran's in-service medical treatment.
Accordingly, this case is REMANDED for the following:
1. The RO should contact the appellant in
writing and ask that she submit the
veteran's July 1991 hospitalization
records from Calamba Medical Center. The
RO should inform the appellant that, in
the alternative, she may complete a
release of medical information for the
July 1991 records from Calamba Medical
Center. If the appellant provides such
the release, the RO should attempt to
obtain those records as provided by law.
2. The RO should also supply the
appellant a NA Form 13055 and ask that she
provide the requested information about
the veteran's in-service medical treatment
to the best of her knowledge. If the
appellant provides additional relevant
information, the RO should forward the
form to NPRC in another attempt to secure
evidence of the veteran's in-service
medical treatment as provided by law.
3. The RO must review the claims file and
ensure that all other notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475 is completed. In
particular, the RO should ensure
compliance with the new notification
requirements and development procedures
contained in sections 3 and 4 of the Act
(to be codified as amended at 38 U.S.C.
§§ 5102, 5103, 5103A, and 5107).
4. Thereafter, the RO should readjudicate
the appellant's claim for service
connection for the cause of the veteran's
death. If the disposition remains
unfavorable to the appellant, the RO
should furnish the appellant a
supplemental statement of the case and
afford the applicable opportunity to
respond.
Thereafter, the case should be returned to the Board for
final appellate review, if in order. The Board intimates no
opinion as to the ultimate outcome of the appellant's claim.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). No
action is required of the appellant unless notified.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes).
In addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
V. L. Jordan
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).